State Consumer Disputes Redressal Commission
Medical Officer,Primary Health ... vs Sau.Vajabai @ Sarswati Shiva (Shivlal) ... on 14 July, 2009
1 F.A. No..1389-1393-04
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing : 11.08.2004
Date of Order : 14.07.2009
(1)
FIRST APPEAL NO.1389 OF 2004
IN COMPLAINT CASE NO. 225 OF 2003
DISTRICT CONSUMER FORUM: JALGAON.
Medical Officer,
Primary health Centre, Lohtar
Tq. Pachora, Dist. Jalgaon. ...Appellant
-VERSUS-
Sau. Vajabai @ Sarswati Shiva (Shivlal) Jadhav
R/o. C/o. Shiva @ Shivlal Ramlal Jadhav
At & Post. Balad (Bu) Tq. Pachora,
District- Jalgaon. ...Respondent
(2)
FIRST APPEAL NO.1390 OF 2004
IN COMPLAINT CASE NO. 127 OF 2003
DISTRICT CONSUMER FORUM: JALGAON.
1. Medical Officer,
Cottage Hospital, Raver
Tq. Raver, Dist. Jalgaon.
2. District Health Officer,
Zilla Parishad, Jalgaon. ...Appellants
-VERSUS-
Sau. Indubai Chhagan Gadhe
R/o. C/o. Shiva @ Shivlal Ramlal Jadhav
At & Post. Khirwad, Tq. Raver,
District- Jalgaon. ...Respondent
(3)
FIRST APPEAL NO.1391 OF 2004
IN COMPLAINT CASE NO. 320 OF 2002
2 F.A. No..1389-1393-04
DISTRICT CONSUMER FORUM: JALGAON.
1. Medical Officer,
Cottage Hospital, Engaon,
Tq. Bodwad, Dist. Jalgaon.
2. District Health Officer,
Zilla Parishad, Jalgaon. ...Appellants
-VERSUS-
1. Sau. Sshobha Onkar Ingle
2. Rajesh Onkar Ingle
Both R/o. Engaon, Tal. Bodwad,
District- Jalgaon. ...Respondents
(4)
FIRST APPEAL NO.1392 OF 2004
IN COMPLAINT CASE NO. 213 OF 2003
DISTRICT CONSUMER FORUM: JALGAON.
1. Medical Officer,
Cottage Hospital, Raver
Tq. Raver, Dist. Jalgaon.
2. District Health Officer,
Zilla Parishad, Jalgaon.
3. Chief Executive Officer,
Zilla Parishad, Jalgaon. ...Appellants
-VERSUS-
Sau. Rahenabi Mard Ruknuddin
R/o. C/o. Ruknuddin Sk. Riyajuddin
At & Post. Raver Nagziri Wada, Tq. Raver,
District- Jalgaon. ...Respondent
(5)
FIRST APPEAL NO.1393 OF 2004
IN COMPLAINT CASE NO. 168 OF 2003
DISTRICT CONSUMER FORUM: JALGAON.
3 F.A. No..1389-1393-04
1. Medical Officer,
Cottage Hospital, Raver
Tq. Raver, Dist. Jalgaon.
2. District Health Officer,
Zilla Parishad, Jalgaon. ...Appellants
-VERSUS-
Sau. Firojabi Sk. Irfan
R/o. C/o. Md. Irfan Md. Iqbal
At & Post Raver, Shankar Plot,
Tq. Raver, District- Jalgaon. ...Respondent
Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Present: Adv. Shri. Nitin Chowdhary for all appellants.
None appeared on behalf of respondent in A-1389/2004 & in A-1390/2004.
Adv. Shri. S.N. Lavekar for respondent in A-1391 & 1392/2004 for respondent.
Adv. Shri. A.I. Deshmukh, for respondent in A-1393/2004.
:: O R A L O R D E R ::
Per Shri S. G. Deshmukh, Hon`ble Judicial Member
1. These appeals have been filed by the original opponents against the judgment and orders dated 12.7.2004 in complaint case no. 225/2003, dated 11.6.2004 in complaint case no.127/2003, dated 24.6.2004 in complaint case no.320/2002, dated 13.7.2004 in complaint case no.213/2003, dated 14.6.2004 in complaint case no.
168/2003 passed by District Consumer Forum, Jalgaon.
2. The respective complainants had undergone Tubuctomy operation at the hands of respective Medical Officers on 2.12.93, 30.3.98, 9.7.99, 10.12.98 & 30.9.87 respectively. It is contended that, in spite of 4 F.A. No..1389-1393-04 Tubuctomy operation the complainants in complaint no. 225/05 gave birth to a female child on 29.7.2000 and male child on 2.11.2002. In complaint no. 127/2003 complainant gave birth to a female child on 21.11.2002. Complainant in complaint no.320/2002 gave birth to a male child on 9.2.2002. Complainant in complaint case no. 213/2002 gave birth to a male child on 30.9.2001. Complainant in complaint no. 168/2003 gave birth to a female child on 2.2.2002. It is contended that the complainants conceived and gave birth to the child in respective complaints due to the negligence on the part of Medical Officer at the time of conducting Tubactomy operation and thus all the complainants approached the Forum.
3. The respondents appeared before the Forum and resisted the claim. It is contended that the services of sterilization operations are done on free of cost. The complainants are paid incentive for the operations in questions. It is also contended that the complainants were made known that there are the chances of failure of the operations, for which hospital or the operating surgeons will not be held responsible.
4. Forum below after going through the papers and hearing the parties allowed the complaints and directed the opponent to pay Rs.25,000/- as a compensation and Rs.1500/- towards the cost in each complaint.
5. Being aggrieved by the said judgment and order opponents came in appeal.
6. Notices were issued to the appellants as well as the respondents in all cases. Learned counsel Shri. Nitin Chowdhary appeared on behalf of appellant in all cases. None appeared on behalf of respondent in A-
5 F.A. No..1389-1393-041389/2004. None appeared on behalf of respondent in A-1390/2004. Adv. Shri. S.N. Lavekar appeared in A-1391 & 1392/2004 for respondent. Adv. Shri. A.I. Deshmukh appeared on behalf of respondent in A-1393/2004.
7. Appellant in Appeal no. 1390/2004 filed the application for condonation of the delay bearing M.A. No. 1815/2004. The delay caused is of 26 days.
The appellant in A-1391/2004 also filed the M.A. No. 817/2004 for condonation of the delay. The delay caused is of 12 days.
The appellant in A-1393/2004 filed application for condonation of the delay bearing M.A. no.1820/2004. The delay caused is of 25 days.
The appellant in A-1390/2004 filed the application for condonation of delay bearing M.A. no. 1815/2004. The delay caused is of 26 days. The delay is properly explained by the appellants. The delay caused is of few days. We condoned the delay.
8. We heard learned counsel for the appellant. The learned counsel for the appellant submitted that, the pregnancy occurring after sterilization may be attributable to the natural failure. He submitted that the medical science recognizes failure of the sterilization operations to the extent of 0.3 % to 3.00%. He submitted that no prevailing method of sterilization, guaranties 100% success. The learned counsel submitted that the complainants were made known that there are chances of failure of operations for which hospital or the surgeons will not be held responsible. According to him operations were done with utmost care and precautions in each case. The learned counsel in that respect relied on the State of Punjab Vs. Shiv Ram & others, reported in 2005 (5) ALL MR (S.C.) 1090.
6 F.A. No..1389-1393-04On the other hand, the learned counsel for the respondents submitted that, as the complainants were not willing to have the child, they have undergone sterilization operations and the doctor had assured that there will not be pregnancy after operations. He fully supported the judgment and orders passed by the Forum.
9. We perused the papers and gave our anxious thoughts to the arguments advanced by both the parties. There is no dispute that all the complainants have undergone Tubactomy operations. They had been given incentives for the operation. There is also no dispute that the complainants gave birth to the child after operations. Nothing is brought on record to show that there was negligence on the part of doctors who in performing the operation in question.
10. In Shiv Ram & others case (Supra) the Hon'ble Supreme Court has held that, merely because women having undergone sterilization operation became pregnant and delivered a child, an operating surgeon cannot be held liable for compensation on account of unwanted pregnancy or child. Claim in tort is sustainable only if there was negligence on the part of surgeon in performing surgery or surgeon assured 100% exclusion of pregnancy after surgery. It if further observed that the proof of negligence shall have to satisfy Bolam's test. Cause of action for claiming compensation in failed sterilization operation arises on account of negligence of operating surgeon and not on account of child birth. Hon'ble Supreme Court also observed that, the methods of sterilization so far known to the medical sciences which are most popular and prevalent are not 100% safe and secure. In spite of operation having been successfully performed and without negligence on the part of operating surgeon, the sterilized woman can become pregnant due to natural causes. Failure due to natural causes would not provide ground for claim. It is for the woman 7 F.A. No..1389-1393-04 who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing such a child cannot be claimed.
In view well legal settled position by Hon'ble Apex Court we are of the opinion that impugned judgment and orders are required to be quashed and set aside. Accordingly we pass the following order.
-:: O R D E R ::-
1. Appeal nos. 1389/2004, 1390/2004, 1391/2004, 1392/2004 & 1393/2004 are allowed.
2. The judgment and order passed by the Forum in complaint case nos. 225/2003, 127/2003, 320/2002, 213/2003, 168/2003 passed by District Consumer Forum, Jalgaon are hereby quashed and set aside.
3. The amount deposited by the appellant be returned to the appellants.
4. All the complaints cases nos. 225/2003, 127/2003, 320/2002, 213/2003, 168/2003 are dismissed.
5. No order as to cost.
5. Copy of the order be furnished to the parties.
(Mrs.Uma S. Bora) (S. G. Deshmukh)
Member Presiding Judicial Member
Kalyankar
8 F.A. No..1389-1393-04